The STATE v. SASS GROUP, LLC (Two Cases) ( 2023 )

SUPREME COURT OF GEORGIA
March 15, 2023
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
It appearing that the attached opinion decides a second-term
appeal, which must be concluded by the end of the December Term,
it is ordered that a motion for reconsideration, if any, must be
received in the Supreme Court E-Filing/Docket (SCED) System by
2:00 p.m. on Wednesday, March 22, 2023.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: March 21, 2023
S22A1243, S22A1244. THE STATE et al. v. SASS GROUP, LLC et
al.
BETHEL, Justice.
The doctrine of sovereign immunity, as enshrined in our
Constitution, bars suits against the State and its employees in their
official capacities unless a statute or the Constitution itself
specifically waives that immunity. See Ga. Const. of 1983, Art. I,
Sec. II, Par. IX (e). The doctrine’s history in Georgia is long and
sometimes winding. 1 Here, we are called upon to examine the
See, e.g., Gilbert v. Richardson, 264 Ga. 744, 745 (1) (452 SE2d 476)
1
(1994) (noting that Georgia adopted “[t]he common law doctrine of sovereign
immunity” in 1784); Intl. Bus. Machines Corp. v. Evans, 265 Ga. 215, 216 (1)
(453 SE2d 706) (1995) (holding that sovereign immunity does not bar suits
seeking injunctive relief to curtail alleged illegal or ultra vires acts of
government entities), overruled by Ga. Dept. of Nat. Res. v. Center for a
Sustainable Coast, Inc., 294 Ga. 593, 596-603 (2) (755 SE2d 184) (2014); Ga.
Dept. of Nat. Res., 294 Ga. at 596-603 (2) (holding that sovereign immunity
barred injunctive relief against the State and overruling Evans); Olvera v.
Univ. System of Georgia’s Bd. of Regents, 298 Ga. 425, 426-429 (782 SE2d 436)
(2016) (declaratory judgment action against state agency barred by sovereign
immunity); Lathrop v. Deal, 301 Ga. 408, 440 (III) (C) (801 SE2d 867) (2017)
1
newest chapter in this history.
In November of 2020, the people of Georgia, through the results
of a ballot question posed in the general election, amended our
Constitution to allow for a specific waiver of sovereign immunity.
See Ga. L. 2020, Act 596, p. 917, § 1. See also Ga. L. 2021, p. 362A
(setting forth referendum results). This new waiver allows citizens
to sue the State (and, in provisions unrelated to this appeal, to sue
local governments) for declaratory relief. See Ga. Const. of 1983, Art.
I, Sec. II, Para. V (b) (“Paragraph V”). To the extent that citizens
obtain a favorable ruling on their claim for declaratory relief, they
may then also seek injunctive relief to “enforce [the court’s]
judgment.” See id. at Para. V (b) (1). To take advantage of this new
waiver of the doctrine of sovereign immunity, however, the
Constitution provides that such actions must be brought
“exclusively” against the State. See id. When a plaintiff’s suit
violates this exclusivity provision, the Constitution requires the suit
(extending sovereign immunity to suits against the State for declaratory and
injunctive relief).
2
to be dismissed. See id. at Para. V (b) (2).
For reasons set forth more fully below, we hold that this
exclusivity provision of Paragraph V means what it says: it requires
dismissal of a lawsuit brought under that paragraph against the
State if it names defendants other than the State or local
governments specifically authorized by that provision. When other
defendants are named in such a lawsuit, the Constitution requires
that the entire suit be dismissed. Here, the plaintiffs’ suit named a
defendant for whom a waiver is not provided by Paragraph V.
Accordingly, the Constitution requires the suit to be dismissed. We
therefore vacate the trial court’s grant of an interlocutory injunction,
reverse the denial of the State’s motion to dismiss, and remand this
case with direction that it be dismissed.
I. Background
The plaintiffs in the underlying suit are purveyors of, among
other things, hemp-derived products. As such, they operate in
treacherous waters created by the tension among existing federal
criminal law and its selective enforcement, existing state law and
3
related enforcement decisions, and the public policy battles still
swirling around the use of marijuana, hemp, tetrahydrocannabinol
(“THC”), cannabidiol (“CBD”), and related compounds. Plaintiffs’
litigation interest is based upon a desire to affirm their right to sell
certain products. More specifically, SASS Group, LLC and Great
Vape, LLC (collectively, the “Plaintiffs”) seek declaratory judgment
affirming the legality of their actions and injunctive relief to protect
their future commercial activities.
As background, in 2018, the United States Congress enacted
the Agriculture Improvement Act of 2018, which, among other
things, legalized the possession and distribution of hemp and hemp
extracts. See Pub. L. No. 115-334, 132 Stat. 4490, and 7 USC § 1639o
(1). That same year, the federal Controlled Substances Act was also
amended to exclude the THC found in hemp from the list of
controlled substances. See 21 USC §§ 802 (16) (B) (i), 812 (Schedule
I (c) (17)). Several states similarly enacted legislation distinguishing
hemp as a non-controlled substance, including Georgia. In 2019, the
Georgia General Assembly passed the Georgia Hemp Farming Act,
4
which adopted the federal definition of hemp and hemp products and
permitted their cultivation and sale under certain circumstances.
See OCGA §§ 2-23-3 – 2-23-12. The hemp industry, it appears, has
since taken root in Georgia. Plaintiffs are businesses in Gwinnett
County, which, until recently, sold Delta-8-tetrahydrocannabinol
(“Delta-8-THC”), Delta-10-tetrahydrocannabinol (“Delta-10-THC”),
and other hemp-derived products that they allege fall within
Georgia’s definition of legal “hemp products.”
On January 25, 2022, the Gwinnett County District Attorney
issued a press release announcing that her office would pursue the
prosecution of “individuals and businesses who engage in the
possession, sale or distribution of . . . [S]chedule 1 controlled
substances.” The press release further described Delta-8-THC and
Delta-10-THC as controlled substances. Plaintiffs allege that the
District Attorney subsequently directed raids and arrests related to
the possession of Delta-8-THC and Delta-10-THC, which included
the seizure of millions of dollars in currency, inventory, and other
property from businesses similar to Plaintiffs’ businesses.
5
Plaintiffs filed a verified complaint against the State of Georgia
and the District Attorney in her individual capacity in the Superior
Court of Fulton County. Plaintiffs sought a judgment against the
State declaring that commercial products containing cannabinoids
derived from hemp, including, but not limited to, products
containing Delta-8-THC, Delta-10-THC, CBD, cannabinol (“CBN”),
and cannabigerol (“CBG”) are “hemp products” as defined by OCGA
§ 2-23-3 and thus may be lawfully possessed and sold throughout
Georgia. Plaintiffs also filed a motion seeking a temporary
restraining order and an interlocutory injunction against the
District Attorney in her individual capacity. The trial court granted
Plaintiffs’ request for a temporary restraining order, and, after a
hearing, an interlocutory injunction against the District Attorney in
her individual capacity, finding that Plaintiffs would otherwise
continue to suffer economic harm as a result of the District
Attorney’s course of conduct described in the January 25 press
release.
The Defendants filed a motion to dismiss, arguing primarily
6
that Plaintiffs’ claims were barred by sovereign immunity. 2 The
Defendants argued, among other things, that the limited waiver of
sovereign immunity in Paragraph V did not apply to Plaintiffs’ case
because both the State of Georgia and the District Attorney were
named as defendants, and Paragraph V states that an action
brought pursuant to its limited waiver must name the State
exclusively as the defendant. The trial court denied the motion to
dismiss. 3 The Defendants’ sovereign immunity argument, however,
was not substantively addressed in the trial court’s order.4
Following the grant of separate certificates of immediate
review, the Defendants sought leave to file interlocutory appeals
from the trial court’s denial of their motion to dismiss and the trial
2 The Defendants incorporated arguments made in their response to
Plaintiffs’ motion for interlocutory injunction regarding the lack of likelihood
that Plaintiffs would prevail on the merits.
3 Plaintiffs subsequently filed an amended verified complaint seeking
declaratory and injunctive relief against the District Attorney and declaratory
relief against the State.
4 In a separate order granting Plaintiffs’ motion for an interlocutory
injunction, the trial court determined that Plaintiffs were likely to prevail on
the merits, finding persuasive decisions in another Georgia trial court and in
Texas and Kentucky that held that products containing Delta-8-THC are legal
and are not considered a controlled substance.
7
court’s grant of Plaintiffs’ request for interlocutory injunction. We
granted leave to seek interlocutory review, and the Defendants
timely brought these appeals. Case S22A1243 concerns the trial
court’s grant of an interlocutory injunction. Case S22A1244 concerns
the trial court’s denial of the motion to dismiss filed by the
Defendants.
II. Analysis
Article I, Section II, Paragraph V of the State Constitution
waives sovereign immunity for certain “actions” seeking declaratory
relief for alleged constitutional violations by state entities, officials,
and employees specifically listed therein. 5 See Ga. Const. of 1983,
Art. I, Sec. II, Para. V. 6 “Actions filed pursuant to this Paragraph”
5 As noted in footnote 6 below, Paragraph V also pertains to suits against
local governments. Our omission of any reference to those potential parties
here is meant only to avoid confusion in addressing the questions presented by
this case. Further, nothing in our analysis should be read as pertaining to a
case involving multiple defendants who are all specifically delineated in the
waiver provision of Paragraph V. That issue is not presented in this case, and
we do not address it here.
6 The portion of Ga. Const. Art. I, § II, Para. V relevant here provides as
follows:
(b) (1) Sovereign immunity is hereby waived for actions in
the superior court seeking declaratory relief from acts of the state
8
must be filed “exclusively against the state and in the name of the
State of Georgia.” Ga. Const. of 1983, Art. I, Sec. II, Para. V (b) (2).
Such actions which name “as a defendant any individual, officer, or
entity other than as expressly authorized under this paragraph shall
be dismissed.” Id.
The crux of the dispute between the parties in this matter is
or any agency, authority, branch, board, bureau, commission,
department, office, or public corporation of this state or officer or
employee thereof or any county, consolidated government, or
municipality of this state or officer or employee thereof outside the
scope of lawful authority or in violation of the laws or the
Constitution of this state or the Constitution of the United States.
Sovereign immunity is further waived so that a court awarding
declaratory relief pursuant to this Paragraph may, only after
awarding declaratory relief, enjoin such acts to enforce its
judgment. Such waiver of sovereign immunity under this
Paragraph shall apply to past, current, and prospective acts which
occur on or after January 1, 2021.
(2) Actions filed pursuant to this Paragraph against this
state or any agency, authority, branch, board, bureau, commission,
department, office, or public corporation of this state or officer or
employee thereof shall be brought exclusively against the state
and in the name of the State of Georgia. Actions filed pursuant to
this Paragraph against any county, consolidated government, or
municipality of the state or officer or employee thereof shall be
brought exclusively against such county, consolidated government,
or municipality and in the name of such county, consolidated
government, or municipality. Actions filed pursuant to this
Paragraph naming as a defendant any individual, officer, or entity
other than as expressly authorized under this Paragraph shall be
dismissed.
9
the meaning of the word “action” as used in this constitutional
provision. Plaintiffs argue that “action” as used here means a claim
or cause of action rather than an entire lawsuit. Under that view,
they say, courts determine whether the exclusivity provision is met
on a claim-by-claim basis. If a claim relies on the waiver provided by
Paragraph V—such as a claim for declaratory relief from the acts of
a state agency—then the claim must comply with the exclusivity
provision or the claim is subject to dismissal. But a different claim
within the same lawsuit that does not rely on Paragraph V’s waiver
would not implicate the exclusivity provision. In other words,
Plaintiffs say that a lawsuit can include all kinds of claims against
all kinds of defendants, and the exclusivity provision requires
dismissal only of claims within that lawsuit that both attempt to
avail themselves of Paragraph V’s waiver and name in that same
claim a defendant other than the State (or the local government at
issue).
The Defendants, by contrast, argue that “action” as used in this
Paragraph means the entire case or lawsuit. Under this view, courts
10
determine whether the exclusivity provision is met by looking at the
lawsuit as a whole. If the plaintiffs in the lawsuit try to avail
themselves of Paragraph V’s waiver of sovereign immunity in any
way—i.e., even for one claim—then it is an “[a]ction filed pursuant
to” that Paragraph and the lawsuit must be brought “exclusively
against the state and in the name of the State of Georgia” (or against
the relevant local government as may be the case). If a lawsuit does
not comply, then the entire lawsuit must be dismissed, even if some
claims within the lawsuit could have otherwise been brought on
their own without relying on Paragraph V’s waiver. For the reasons
that follow, we agree with the Defendants that “action” as it is used
in this constitutional provision refers to an entire case or lawsuit, so
we reverse the trial court’s denial of the Defendants’ motion to
dismiss and vacate the grant of the Plaintiffs’ interlocutory
injunction.
a. “[W]hen we consider the meaning of a constitutional
provision, we must seek to ascertain the way in which the text most
reasonably would have been understood at the time of its adoption,
11
reading it as an ordinary speaker of the English language would.”
(Citation and punctuation omitted.) Lathrop, 301 Ga. at 440 (III) (C).
Doing so “requires careful attention to not only the language of the
clause in question, but also its broader legal and historical context,
which are the primary determinants of a text’s meaning.” Ammons
v. State, 315 Ga. 149, 163 (3) (880 SE2d 544) (2022). Our efforts in
this regard are aided greatly in the present case by the fact that the
language at issue here was only recently incorporated into our
Constitution. Unlike those occasions in which we have been called
upon to review language as it was understood when it was adopted
many years ago, we find ourselves today considering the ordinary
meaning of the English language as it is understood in present-day
Georgia.
“In understanding a constitutional provision, we must be
mindful that constitutions are the result of popular will, and their
words are to be understood ordinarily in the sense they convey to
the popular mind.” (Citation and punctuation omitted.) Georgia
Motor Trucking Assn. v. Ga. Dept. of Revenue, 301 Ga. 354, 357 (2)
12
(801 SE2d 9) (2017). We therefore consider the ordinary meaning of
the words as they appear in the Constitution. See id. at 356 (2)
(“[W]e afford the constitutional text its plain and ordinary meaning,
view the text in the context in which it appears, and read the text in
its most natural and reasonable way[.]” (citation and punctuation
omitted)); Savage v. State, 297 Ga. 627, 635 (4) (b) (774 SE2d 624)
(2015) (“We similarly presume that the words used in the
Constitution bear their ordinary meanings at the time those words
were included.”). And, of course, “it is the understanding of the text
by reasonable people familiar with its legal context that is
important, not whether every citizen understood the particular
meanings of a constitutional provision.” 7 Elliott v. State, 305 Ga.
7 This principle articulated in Elliott, distilled from other cases, should
not be understood as suggesting that the meaning assigned to constitutional
language is based on the subjective understanding available only to some
special group. On the contrary, it is always the original public meaning that
controls. Thus, the reference to “reasonable people familiar with [the] legal
context” is not a description of some particular or specific subset of the
populace. Rather, this principle conveys that the legal context must be
considered in discerning the meaning of the language, and that legal context
sometimes takes work to understand. Indeed, the analysis in this case
illustrates that point. When we consider the meaning of terms appearing in
the Constitution – like “action” – we do not solely consider the meaning they
13
179, 207 (III) (C) (ii) (824 SE2d 265) (2019).
The ordinary-meaning question we have to answer here is
whether the word “action,” as used in Paragraph V, means an entire
lawsuit or only a claim that is brought in a lawsuit. One place to look
for ordinary meaning is contemporaneous dictionaries from around
the time when the text was adopted. Dictionaries cannot be the
definitive source of ordinary meaning in questions of textual
interpretation because they are acontextual, and context is a critical
determinant of meaning. See Antonin Scalia & Bryan Garner,
Reading Law: The Interpretation of Legal Texts 70 (2012). But as
long as we recognize this limitation, they offer a useful reference for
any such analysis. And here, the dictionaries from the time the text
was adopted generally define an “action” as a lawsuit or
“proceeding,” whereas a “claim” is defined as being a distinct part of
might have in ordinary conversation and in isolation; we must consider also
the broader legal context in which these terms were adopted. The sources we
consider in that analysis are not private or subjective; constitutional history,
statutory history, decisional law, and similar sources are objective sources of
publicly discoverable meaning properly within our consideration. And this is
so whether or not every member of the public is aware of the substance of those
sources.
14
that suit that asserts a particular demand or right. See, e.g.,
Merriam Webster’s Collegiate Dictionary (11th ed. 2020) (defining
“action” as “the initiating of a proceeding in a court of justice by
which one demands or enforces one’s right; also : the proceeding
itself” and “claim” as “a demand for something due or believed to be
due”); Shorter Oxford English Dictionary on Historical Principles
(6th ed. 2007) (defining “action” as “[a] legal process or suit”). And
the same is true if we look to legal dictionaries. See, e.g., Black’s Law
Dictionary (11th ed. 2019) (defining an “action” as “[a] civil or
criminal judicial proceeding” and “claim” as “[a] demand for money,
property, or a legal remedy to which one asserts a right; esp[ecially]
the part of a complaint in a civil action specifying what relief the
plaintiff asks for”).
This understanding of “action” as a lawsuit or proceeding in
which claims are brought finds further support in common usage. In
both judicial decisions and statutes, “action” is more commonly used
to refer to a “whole lawsuit” rather than a claim. See, e.g., Joyner v.
Leaphart, 314 Ga. 1, 4-7 (2) (a) (875 SE2d 729) (2022) (referring to
15
“actions” as lawsuits and distinguishing between the two-dismissal
rule’s applicability to “actions” and “claims”); McInerney v.
McInerney, 313 Ga. 462, 463 (1) (870 SE2d 721) (2022) (using the
term “action” to refer to a lawsuit); Riley v. Georgia Assn. of Club
Execs., 313 Ga. 364, 364 (870 SE2d 405) (2022) (same); Dept. of Pub.
Safety v. Ragsdale, 308 Ga. 210, 210 (839 SE2d 541) (2020) (same);
Plummer v. Plummer, 305 Ga. 23, 23-24 (823 SE2d 258) (2019)
(same); RES-GA McDonough, LLC v. Taylor English Duma LLP,
302 Ga. 444, 444-445 (807 SE2d 381) (2017) (same); Price v. Dept. of
Transp. of Georgia, 257 Ga. 535, 536 (361 SE2d 146) (1987),
superseded by constitutional amendment as stated in Lathrop, 301
Ga. at. 422 (II) (B) (“We note the waiver speaks of ‘actions’ and of
‘claims.’ For certain actions there is a waiver of sovereign immunity.
They are: (1) Those actions involving a claim against the state, or
any department or agency, (2) for which liability insurance
protection for such claims has been provided, (3) but only to the
extent of insurance provided. So, the task is to determine if the claim
asserted here is of the type described in the constitution. If it is,
16
there is a waiver of sovereign immunity, not for the claim, but for
the action.” (emphasis supplied; footnote omitted)). See also OCGA
§§ 9-11-2 (“There shall be one form of action, to be known as ‘civil
action.’”); 9-11-3 (noting that a “civil action” commences with the
filing of the complaint and case filing form); 9-2-5 (a) (“No plaintiff
may prosecute two actions in the courts at the same time for the
same cause of action and against the same party.”); 9-2-22 (“[T]he
party plaintiff may join in one action, as parties defendants, all
parties who allegedly contributed in the construction of the
improvements. . . .”); 9-2-61 (using the words “case” and “action”
interchangeably); Davis & Shulman’s, Ga. Practice & Procedure, §
1:1 (2022-2023 ed.) (“‘Action,’ ‘suit’ and ‘proceeding’ are often used
synonymously.”).
To be sure, in other instances, “action” can be understood as a
reference to things other than a lawsuit, such as a claim, as
Plaintiffs argue. See, e.g., OCGA § 9-3-70 (defining an “action for
medical malpractice” as meaning “any claim for damages resulting
from the death of or injury to any person”). Indeed, the Civil Practice
17
Act broadly defines an “action” as a “judicial means of enforcing a
right.” OCGA § 9-2-1. See also Housing Auth. of Savannah v. Greene,
259 Ga. 435, 437 (2) (383 SE2d 867) (1989) (considering a third-party
complaint an “action” under OCGA § 9-2-1); Buckler v. Dekalb
County Bd. of Tax Assessors, 288 Ga. App. 332, 333 (654 SE2d 184)
(2007) (noting that an appeal qualifies as an “action”); Jordan v.
Lamberth, Bonapfel, Cifelli, Willson & Stokes, P.A., 206 Ga. App.
178, 179 (1) (a) (424 SE2d 859) (1992) (qualifying counterclaims as
an “action”). But “action” is ordinarily and more commonly used to
mean a case or lawsuit, and other contextual clues within the
Constitution confirm that to be the case with respect to the specific
provision at issue here.
b. Our determination that the exclusivity requirement in
Paragraph V relates to lawsuits rather than claims is further
confirmed by the context of other language in Paragraph V and other
parts of the same section of the Constitution. “[W]hen we determine
the meaning of a particular word or phrase in a constitutional
provision or statute, we consider text in context, not in isolation.”
18
Elliott, 305 Ga. at 186 (II) (B). See also Stephens v. Reid, 189 Ga.
372, 379 (1, 2) (6 SE2d 728) (1939) (in interpreting an amendment
of the constitution, we look to “the language and arrangement of the
article, section and paragraph,” as well as “the object to be secured,
and . . . extrinsic matters [such] as the circumstances attending its
ratification, the sense in which it was understood by
contemporaries, and its relation to other parts of the constitution”).
We may also “refer to the rules of English grammar, inasmuch as
those rules are the guideposts by which ordinary speakers of the
English language commonly structure their words,” and the drafters
of the constitutional amendment are presumed to know the rules of
grammar. (Citation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173
(1) (a) (751 SE2d 337) (2013) (stating the same with respect to
statutory text).
In applying these principles, we note that subparagraph (b) (4)
provides that “[n]o damages, attorney’s fees, or costs of litigation
shall be awarded in an action filed pursuant to this Paragraph,
unless specifically authorized by Act of the General Assembly.”
19
(Emphasis supplied.) Ga. Const. of 1983, Art. I, Sec. II, Para. V (b)
(4). We would ordinarily say that attorney fees, litigation expenses,
or damages would be awarded in a lawsuit at its conclusion. See,
e.g., OCGA § 9-15-14 (a) (“In any civil action in any court of record
of this state, reasonable and necessary attorney’s fees and expenses
of litigation shall be awarded to any party against whom another
party has asserted a claim,” etc. (emphasis supplied)); McGahee v.
Rogers, 280 Ga. 750, 754 (2) (632 SE2d 657) (2006) (“[A]n award of
attorney’s fees under OCGA § 19-6-2 in this case would require a
determination whether McGahee violated the divorce decree.”
(citation and punctuation omitted; emphasis supplied)); L.S. Land
Co. v. Burns, 275 Ga. 454, 457 (3) (569 SE2d 527) (2002) (“[W]e
cannot hold as a matter of law that attorney’s fees in this
reformation case were not authorized under [OCGA] § 13-6-11.”). It
would not make sense, by contrast, to say that such items shall be
awarded “in” a claim. In other words, “action” in subparagraph (b)
(4) logically refers to an entire lawsuit. Because we presume that the
same meaning of “action” applies throughout subparagraph (b),
20
Clarke v. Johnson, 199 Ga. 163, 164-165 (33 SE2d 425) (1945), this
phrasing offers further support that “action” as used in the
exclusivity provision refers to the entire lawsuit.
Additionally, other provisions of our Constitution further
support interpreting “action” in Paragraph V to mean a lawsuit
rather than a claim. Article I, Section II, Paragraph IX (a) authorizes
enactment of the State Tort Claims Act and, in doing so, states that
“the General Assembly may provide by law for procedures for the
making, handling, and disposition of actions or claims” against the
State and various state entities. (Emphasis supplied.) Georgia
Constitution of 1983, Art. I, Sec. II, Para. IX (a). This authorizing
language distinguishes between “actions or claims,” which are set
forth in the disjunctive. See Rockdale County v. U.S. Enterprises,
Inc., 312 Ga. 752, 766 (3) (b) (865 SE2d 135) (2021) (noting that the
word “or” normally indicates an alternative and is commonly
understood as a disjunctive term). Accordingly, it necessarily follows
that each of these words was intended to have a different meaning,
as reading “actions” to mean “claims” in this provision would render
21
one of the two words superfluous, which runs afoul of this Court’s
routine admonition that “courts generally should avoid a
construction that makes some language mere surplusage.”
(Punctuation omitted.) Middleton v. State, 309 Ga. 337, 342 (3) (846
SE2d 73) (2020). See also Blum v. Schrader, 281 Ga. 238, 241 (2)
(637 SE2d 396) (2006) (“[I]t is a basic rule of constitutional
construction that no provision is presumed to be without meaning
and that all of its parts should be construed so as to give a sensible
and intelligent effect to each of them.”); Price, 257 Ga. at 536 & n.3
(distinguishing between “action” and “claim” under a prior version
of Paragraph IX). We must therefore infer from the Constitution’s
disjunctive use of “action or claim” in this paragraph that its drafters
intended a difference in the meanings of these two words. 8 See
generally Blum, 281 Ga. at 241 (2). And in this case, this common
understanding of “action” applies with equal force to the later-added
8 Indeed, other parts of our Constitution likewise distinguish an “action”
from a “cause of action.” Compare Ga. Const. of 1983, Art. VI, Sec. II, Para. I
(using “action” and “case” interchangeably), with Art. I, Sec. I, Para. XXX (c)
(1) (using “cause of action”).
22
Paragraph V in the same section of our Constitution, as we presume
that the same meaning attaches to a given word or phrase
wherever it occurs in a constitution; and where a word or
phrase is used in one part of a constitution in a plain and
manifest sense, it is to receive the same interpretation
when used in every other part, unless it clearly appears,
from the context or otherwise, that a different meaning
should be applied to it.
Clarke, 199 Ga. at 164-165. In short, other provisions of our
Constitution differentiate between “action” and “claim,” and this
context further confirms that “action” in Paragraph V refers to a
lawsuit as a whole rather than a claim in a lawsuit.
c. Plaintiffs offer a final argument based on the consequences
of this reading. They point out that if “action” in Paragraph V means
the whole lawsuit, then Paragraph V requires plaintiffs who wish to
rely on its waiver to file a lawsuit containing only a claim or claims
for declaratory relief against “the State.” Any other related claims
(like their claim against the District Attorney here) must be filed in
a separate lawsuit, or the entire lawsuit will be dismissed—even if
the related claims do not rely on Paragraph V’s waiver. That
reading, they contend, favors form over substance, kicks perfectly
23
viable claims out of court, and runs counter to the goal of judicial
efficiency.
Plaintiffs are correct that our rules of civil practice and related
doctrines generally demonstrate a preference that litigants bring all
relevant claims related to their case in one action. See, e.g., OCGA
§§ 9-11-13 (regarding counter- and cross-claims); 9-11-18 (joinder of
claims and remedies); 9-11-19 (joinder of persons); 9-11-22
(interpleader); 9-11-24 (intervention); Body of Christ Overcoming
Church of God, Inc. v. Brinson, 287 Ga. 485, 486 (696 SE2d 667)
(2010) (“The doctrine of res judicata prevents the re-litigation of all
claims which have already been adjudicated, or which could have
been adjudicated, between identical parties or their privies in
identical causes of action.”). But the exclusivity provision’s apparent
tension with this general anti-claim-splitting preference makes
sense in light of the relevant legal context and history.
In Lathrop, this Court made clear that
[t]he constitutional doctrine of sovereign immunity
bar[red] any suit against the State to which it has not
given its consent, including suits against state
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departments, agencies, and officers in their official
capacities, and including suits for injunctive and
declaratory relief from the enforcement of allegedly
unconstitutional laws.
301 Ga. at 444 (IV). See also Sustainable Coast, 294 Ga. at 603 (2)
(holding “that sovereign immunity bars the [plaintiff]’s claim for
injunctive relief against the State”). However, we noted that the
plaintiffs could pursue “prospective remedies . . . against state
officers in their individual capacities.” Id. See also Sustainable
Coast, 294 Ga. at 603 (2) (noting that “citizens aggrieved by the
unlawful conduct of public officers . . . must seek relief against such
officers in their individual capacities.”).
Paragraph V was enacted in the wake of Lathrop, which made
clear that suits against state officers and employees in their official
capacities were indeed barred by sovereign immunity. This
constitutional provision created a new, limited express waiver of
sovereign immunity for specific types of suits seeking declaratory
and injunctive relief against the State. But if a plaintiff wants to
avail himself of the limited waiver provided by Paragraph V, then
25
he must bring the action “exclusively against the state and in the
name of the State of Georgia,” which forecloses the option of also
suing a state actor in his or her individual capacity in that same
suit. Accordingly, the consequences Plaintiffs point out track the
provision’s language and context, including the broader context in
which the constitutional amendment to Paragraph V was enacted,
and therefore are not a reason to deviate from the ordinary meaning
of the word “action” as used here.
d. In sum: Paragraph V provides a limited waiver of sovereign
immunity “for actions in the superior court seeking declaratory
relief from acts of the state” or the state entities specifically listed in
Paragraph V. Ga. Const. of 1983, Art. I, Sec. II, Para. V (b) (1).
Paragraph V (b) (2) further provides that actions filed pursuant to
Paragraph V must be filed “exclusively against the state and in the
name of the State of Georgia” and that “[a]ctions filed pursuant to
this Paragraph naming as a defendant any individual, officer, or
entity other than as expressly authorized under this Paragraph
shall be dismissed.” (Emphasis supplied.) See Ga. Const. of 1983,
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Art. I, Sec. II, Para. V (b) (2). And, as explained above, we conclude
that “actions” in this context means “lawsuit.”
Accordingly, if a lawsuit is filed against the State pursuant to
Paragraph V and that suit includes an independent claim against
another party not specified in that paragraph’s waiver provision,
then the entire lawsuit must be dismissed. See id. Thus, the
presence of a named defendant to whom Paragraph V’s waiver does
not apply is fatal to an “action” that relies on Paragraph V’s waiver
of sovereign immunity.
Here, because their claims against the State for declaratory
and injunctive relief required Paragraph V’s waiver of sovereign
immunity, the Plaintiffs filed this lawsuit against the Defendants
pursuant to Paragraph V. The District Attorney, in her individual
capacity, was an additional named defendant not authorized by
Paragraph V. 9 Because we have determined that this suit qualifies
9 In briefing and at oral argument, there was disagreement between the
parties over which complaint was the operative pleading that the Court ought
to consider. But deciding this issue is not essential to the resolution of this
case, as both complaints named the District Attorney in her individual capacity
27
as an “action” under Paragraph V, the entire case must be dismissed
under the plain language of that constitutional provision. 10 See Ga.
Const. of 1983, Art. I, Sec. II, Para. V (b) (2).
For these reasons, we reverse the trial court’s denial of the
State’s motion to dismiss, vacate the order granting an interlocutory
injunction as the question should not have been reached by the trial
court, and remand this case with direction that it be dismissed.
Judgment reversed and case remanded with direction. All the
Justices concur.
in addition to the State.
In any event, Plaintiffs’ suggestion that the Court should view their
amended complaint as one encompassing two separate “actions” that are joined
or “consolidated” into one case under OCGA § 9-11-20 is problematic. The
relevant permissive joinder provision of OCGA § 9-11-20 provides that “[a]ll
persons may be joined in one action as defendants if there is asserted against
them jointly, severally, or in the alternative any right to relief in respect of or
arising out of the same transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to all of them will arise
in the action.” (Emphasis supplied.) OCGA § 9-11-20 (a). The statutory use of
the singular to describe an action which includes permissively joined claims
and/or parties does not support the conclusion that the use of “action” in the
constitutional text should be understood to relate only to the claim against the
State.
10 Because of our holding here, we need not address arguments as to the
interlocutory injunction beyond vacating the order granting relief because the
matter should never have been reached. We need not also address the other
arguments raised by the Plaintiffs or the Defendants, including whether the
Plaintiffs may still bring a separate action against the District Attorney in her
individual capacity.
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